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  1. WORD LIMIT: 2000 words (maximum).

    1. For these purposes, the word count includes footnotes, but excludes the bibliography.


    STYLE GUIDE:  This essay must be written in accordance with the AGLC4 Style Guide.  Marks will be deducted for non-compliance



    Comprehension and description of Underkuffler’s argument.

    Knowledge and understanding of the relevant legal concepts and principles demonstrated in the argument for or against Underkuffler.

    Use of appropriate illustrative examples.

    Research, referencing, bibliography.

    Sound analysis and structure.

    Cogently written. Spelling, grammar, punctuation, adherence to conventions of legal writing, compliance with AGLC4.


    Professor Laura Underkuffler has argued that ‘the tension between the individual and the collective’ is a ‘part of the concept of property’. She asserts that ‘[p]roperty … serve[s] a mediating function between individual rights and governmental power. It never contained nor encouraged absolute individual protection over collective goals.’

    See Laura S Underkuffler, ‘On Property: An Essay’ (1990) 100 Yale Law Journal 127, 147 and 142.


    What does Professor Underkuffler mean by this?  Do you agree with her?  Does this accord with the notion of property (including the concept of possession) as it is understood in Australian law?  You should illustrate your answer by reference to decided cases (Australian jurisdiction) and/or legislation

    1. With respect to legislation, prima facie, reference should be to Western Australian legislation; and to other Australian legislation only for comparison or where no equivalent WA legislation exists.








    Class note



    Cowell v Rosehill Race Course (1936) 56 CLR 605 (SN 1.18; APL 69)


    *Victoria Park Racing & Recreation Grounds Co. v Taylor (1937) 58 CLR 479 (SN 1.48, APL 9)


    *Moore v Regents of the University of California (1990) 793 P 2d 479 (SN 1.38)


    Milirrpum et al v Nabalco Pty Ltd & Anor (1970) 17 FLR 141 (SN 1.8, 1.117)


    *Yanner v Eaton (1999) 201 CLR 351 258 (APL 24)


    *K Gray “Property in Thin Air” (1991) 50 CLJ 252 (APL 37)


    *K Gray, “The idea of Property in Land” in Bright & Dewar (ed), Land Law: Themes and Perspectives (OUP, 1998), pp 15 – 51; SN 1.7E.


    1. What is property?
    2. philosophers
    • Where does property come from?
    • Private property: good or evil?
    1. legal scholars
    • Gray – excludability
    • Macpherson – human dignity
    • Underkuffler
    1. judges
    • Yanner v Eaton– power
    • Millirpum v Nabalco– a bundle of rights
    • Re Toohey; Ex parte Meneling Stationand National Provincial Bank v Ainsworth  – What kind of rights? Necessary qualities of property.


    1. What things can be property?
    2. Two important factors.
    • Excludability

    o   Victoria Park Racing v Taylor

    • Property as an economic concept

    o   Moore v Regents UCCLA

    1. Can a corpse be property?
    • Doodeward v Spence
    1. What about human tissue?
    • Ex parte C

    See article by Kate Falcolner on LMS.

    1. Proprietary interests v personal rights
    • Colwell v Rosehill Racecourse
    1. The Legal Classification of Property
    2. Sources of Property Law– Where do we find property law?


    Key terms:

    Proprietary interest / right in rem

    Personal right / right in personam

    Real property

    Personal property


    Chose in possession

    Chose in action

    Legal interest

    Equitable interest


    Possession is important in three ways:

    –          As evidence of title;

    –          As a source of title; and

    –          As a proprietary interest.

    It was important both in the law of personal property and also in land law.

    In todays’ class we will explore the cases which afford title in abandoned goods to the person who finds them and takes them into her possession. The key to understanding this part of the law is to understand the concept of title and especially the fact that title is relative. The person lawfully in possession has a better title than anyone else, except the true owner.

    In relation to land, we will look carefully at cases, which show that possession itself constitutes a proprietary interest. This will prepare the way for our class next week about the doctrine of adverse possession.


    Lesson Plan

    • Key concepts: Ownership, Title and Possession.


    • Three meanings of possession.


    • Possession = Physical control + intention to possess.


    • Two forms of possession:
    1. Actual possession
    2. Constructive possession


    • The significance of possession of chattels:
    1. The basic rule: finder’s keepers … Armorie v Delamirie
    2. When are goods lost or abandoned?
    3. What if the goods are found on someone else’s land?

    Two contrasting cases:

    –          South Staffordshire Water Co v Sharman

    –          Bridges v Hawkesworth

    1. Synthesis: Parker v British Airways Board
    2. What if the finder was a trespasser:

    Two contrasting cases:

    Hibbert v McKiernan and Bird v The Town of Fort Frances


    • The significance of possession of land


    • No ownership of land: doctrine of tenure, doctrine of estates (briefly) and seisin.


    • Possession as a proprietary interest:
    • Asher v Whitlock
    • Perry v Clissold
    • Mabo.



    Key Terms

    Ownership is ‘a legal right to have and to dispose of possession’ (Yanner v Eaton, [25] (the majority)). Although ownership and  possession overlap most of the time in practice – for example, you both own your house and are in possession of your house – they are nevertheless distinct legal concepts (Yanner v Eaton [85] (Gummow J)). For our introductory purposes, think of ownership as the ‘strongest’ court enforced legal right to be in possession of the land (in the event that the owner loses possession of the land to someone else).  

    ‘Occupation’ of land – by itself – confers no (possessory or proprietary) rights in the land; it is often necessary but insufficient for establishing ‘possession’. 

    ‘Title’, in the context of land, is often a synonym for a (possessory) ‘right’ in land. More technically, ‘title’  is usually used to refer to a recognisedpossessory right in land (whether by virtue of being the ‘documentary owner’ or being in ‘possession’ of land). However, having a title to land is not the end of the story; often many people can have many titles in the land. In dispute between various title holders to the same land, the question is always: who has the ‘strongest’ or ‘best’ title? Title is always a relative term (see below on relativity of title). Be careful, however, because ‘title’ is sometimes used interchangeably with ‘claim’. It all depends upon the context.

    Doctrine of relativity of title: given that multiple people can have (incompatible) titles (or claims to titles) to the same piece of land, the courts will award possession and/or ownership to the person with the ‘stronger’ or ‘strongest’ title. Think of title in land in relative not absolute terms. Having the ‘stronger’ title to land is bit like saying someone is ‘tall’: it is always a question of ‘compared to whom’. ‘Ownership’ usually implies the ‘strongest’ title to land.

    ‘A claim’, in the context of land law, usually denotes the assertion of a right or title in land—whether such a right or title actually exists is a matter for determination for the courts.



Subject Essay Writing Pages 12 Style APA


Individual Interests Verses Collective Interests in Property

In an article dubbed, On Property: An Essay, Laura S. Underkuffler provides a detailed analogy of the extent to which “the tension between the individual and the collective” is a significant part of the “concept of property”.[1] She indicates that in the past, property could not be defined outside of its social contexts and that it was enjoyed on the collective/ community level. This means that individuals enjoyed interests in land by virtue of their belonging to a particular group. However, with the development of modern governance, the agrarian and industrial revolution, as well as the age of capitalism among other factors, there has been a steady movement towards defining and viewing property on individual rights as opposed to community rights. This is what can be referred to as the age of individual autonomy.[2] Professor Underkuffler particularly makes mention of the recent Fifth Amendment decision that was arrived at by the Supreme Court and argues that the jurisprudence set out by the court with respect to the definition of property based on reliance on ‘objectivity’ and ‘technicality’ tends to lead to “conflicting and contradictory results”.[3] The argument herein is that individual rights should not have precedence over collective rights and that a movement towards clamoring for individual autonomy is impracticable. Such divergence leads to tension with respect to the understanding of the concept of property. The averments of Professor Underkuffler are indeed true since the concept of individual autonomy over property is marred with many limitations.

A number of maxims and doctrines with respect to the concept of property in Australia align themselves with the averments that have been laid out by Professor Underkuffler with respect to the conflict between individual and collective interests. One such maxim is the Cujus est solum, eius est usque ad coelum et ad inferos (otherwise referred to as the Cujus maxim (article).[4] This maxim postulates that whoever owns land in fee simple enjoys absolute rights over it all the way down to the Centre of the earth and all the way up to the heavens (article).[5] This age old maxim is one of the proponents that have been used to propagate the individual interests over property as opposed to the collective interests. The maxim, for instance, implies that the absolute owner of property has rights over the air above him and even the sub-soil beneath him. This was illustrated in the common law case of Bury v Pope[6] wherein the court indicated that the owner of the realty could build a tall building even through this would block his neighbor’s access to light. This is, however, completely misleading in the practical level. In the enjoyment of his rights, for instance, the absolute owner of property cannot infringe on the collective rights of others. He cannot engage in activities that cause air pollution. This then means that whereas in common law land has been defined in a manner that suggests that the air above the ground belongs to the owner; this is not true since in many respects, the collective interest take precedence.

Similarly, whereas the Cujus Maxim infers that the individual absolute owner of land can set out to build a ‘tower of babel,’ policies have been put in place with respect to the height limits that must be complied with when setting out to build a tall building in Australia. In the state of Victoria, for instance, urban planning policies indicate that the maximum height for a residential building stands at “11 meters with a maximum three storey height limit”.[7] These restrictions apply to all individuals who have an interest in land regardless of the level of interests they hold. Essentially, “fee simple ownership cannot possibly confer on the modern landowner a limitless dominion over the vertical column of airspace grounded within the territorial boundaries of his or her realty”.[8] Such policies are meant to cater for the collective interests over land as opposed to the individual interests. A case that particularly illustrates the fact that the Cujus Maxim is not entirely practicable to the extent of clamoring for the rights of the individual as opposed to collective rights is Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] Q.B. 479. In this case, the plaintiff presented a complaint to the effect that the defendant had flown over his property, as well as, the property of his neighbours and that photographs were taken in the process in violation of the right to privacy.[9] The plaintiff relied on the Cujus Maxim and indicated that the air above his him was his property.[10] The suit failed and the court noted that if the maxim was to be interpreted in the literal sense, then trespass suits would be presented even with regard to the flying of satellite objects and airplanes.[11]

Similarly, contrary to the postulation set forth by the Cujus Maxim, the subsoil resources do not belong to the individual land owner in absolute. Whereas the individual land owner has ownership of the soil beneath him, this absolute right is merely imaginary or fictitious. The owner of land in Australia does not have the exclusive right of exploiting the resources beneath since this right collectively belongs to the people through the government. The general rule in this regard is that the Common Wealth has ownership of the soil minerals and this ownership is in trust for the people of Australia as postulated by Jean Jacques Rousseau in the Social Contract theory. This was illustrated in the Australia case of Wade v New South Wales Rutile Mining Co Pty Ltd wherein Windeyer J stated thus;

“A freeholder is … entitled to take from his land anything that is his … except for those mineral which belong to the Crown, the soil and everything naturally contained therein is his.”[12]

Ideally, the averments that have been brought forth by Professor Underkuffler are to a significant extent in accordance with the notion of property as it is understood in the Australian law. Whereas the individual has ceremonial absolute rights over his property, it is important to note that these rights are not absolute especially when it comes to claims that can be made by the government. Section 51 (xxxi) of the Constitution of Australia particularly provides that the Commonwealth can acquire property “on just terms from any state or person from any person in respect of which parliament has powers to make laws”.[13]

In response to this, the Land Administration Act 1997 (LAA) has applicability in Western Australia. This Act adeptly makes provision for compulsory acquisition matters. Compulsory acquisition in this instance connotes that the government has the exclusive right of acquiring private rights in land with or without the consent of the owner for the purpose of seeing that its utility is to the benefit of the society as a whole.[14] In this regard, even land that had not be demarcated by statute as land that may serve the purpose of providing a right of way may be so converted as and when the need arises and this ideally is meant to benefit all persons. This position is illustrated under Section 6B of the Land Administration Act 1997 (LAA) which states that it is declared that if;

(a) land was or is taken or resumed and vested in a local government for the purpose of a right of way or a right of way and recreation, and not a road; and (b) the land comprising the right of way or right of way and recreation has not been or is not dedicated as a road under a written law, the land — (c) is and since it was vested in the local government has remained a right of way; and (d) the common law relating to the creation of a public right of way by way of dedication and acceptance has never applied and does not apply to the land so as to dedicate the land as a public right of way.[15]

Essentially, no restrictions have been stipulated with respect to the acquisition of land by the government from individual private owners for the sake of translation of the usage of that land for public purposes. The same is provided for under Section 11 of the Act which makes provision for the powers of the Minister to acquire private land (fee simple land) on behalf of the State.[16] It is provided that “the Minister may in the name and on behalf of the State, acquire an estate, interest or other right in or to land in the public interest from any person by accepting the surrender of land held in fee simple or a less estate or interest, by forfeiture, by exchange” or by any other manner provided for in the Act (Land Administration Act 1997 (LAA), Section 11). This ideally means that if an individual who has interests in land in fee simple refuses the offer of exchange (being transferred to a different piece of land so that the State acquires interests over the land that the individual has fee simple interests over), or purchase and generally fails to surrender the fee simple interest or less estate or interest to the State, the State has the power to conduct a forfeiture of the land anyway (Land Administration Act 1997 (LAA), Section 11). It then becomes apparent that the individual rights over land cannot take precedence over the collective interests.

The doctrine of adverse possession as practiced in the Australian land law regime also speaks to the fact that collective interests over land take precedence over the individual interests. The doctrine is age old concept that has enjoyed applicability in Australia for a long time. This doctrine postulates that if an individual has continuously been in possession of the land for a statutorily stipulated amount of time, then the individual can move to have the property registered in his name even though the fee simple owner of the property may be in existence.[17] This can arguably be described as constructive possession. This doctrine is meant to ensure that the larger community is not hindered from usage of property or continuous enjoyment thereof after having used it for a long period of time. In Western Australia, the statutory time limit is 12 years. Essentially, an individual who trespasses on another person’s land and stays there for 12 years the right to be registered as the owner of the fee simple interest in the land and this provides security for the continuous enjoyment thereof without interference. The adverse possession doctrine, therefore, secures collective interests over individual interest.

From the time the concept of individual ownership of interests in land commenced, there has always been a conflict between collective interests vis-à-vis individual interests. As illustrated by Laura S. Underkuffler in “On Property: An Essay,” regardless of the modern efforts and steps that have been taken to secure the rights of the individual owner over and above the collective rights, this movement can never carry the day and collective interests will always be the priority. In Australia, the Cujus est solum, eius est usque ad coelum et ad inferos (otherwise referred to as the Cujus maxim (article) does not have absolute applicability. Compulsory acquisition also means that the private property can be taken at any time by the state for the collective enjoyment of the society. Further, the doctrine of adverse possession means that a trespasser can acquire fee simple title to land after continuously living thereon without the knowledge of the owner. This means that absentee land owners do not have superior interests to that of the society.



[1] Laura S. Underkuffler, ‘On Property’ (1990) 100(1) The Yale Law Journal 130.

[2] Ibid 132.

[3] Ibid 128.

[4] Gray Kevin, ‘Property in thin air’ (1991) 50(2) The Cambridge Law Journal 252.

[5] Ibid 253.

[6] (1586) Cro. Eliz. 118, 78 E.R. 375

[7] Victoria State Government, ‘Reformed Residential Zones (Online at 21 March 2019) 2.

[8] Ibid (n4) 253.

[9] Bernstein of Leigh (Baron) v. Skyviews & General Ltd. [1978] Q.B. 479.

[10] Ibid 482.

[11]Ibid 482.

[12] (1969) 121 CLR 177, p 185.

[13] Constitution of Australia, Section 51 [xxxi].

[14] Jacobs Marcus and Michael Donald Kirby, Compulsory Land Acquisition (Lawbook Company 2010) 52.

[15] Land Administration Act 1997 (LAA), Section 6B.

[16] Ibid, Section 11.

[17] Burns, Fiona. ‘Adverse possession and title-by-registration systems in Australia and England’ (2011) Melb. UL Rev.773.

masterstroke in dealing with the mental health issues that surround us all.


Burns, Fiona. “Adverse possession and title-by-registration systems in Australia and England.” Melb. UL Rev. 35 (2011): 773.

Gray, Kevin. “Property in thin air.” The Cambridge Law Journal50, no. 2 (1991): 252-307.

Jacobs, Marcus, and Michael Donald Kirby. Law of Compulsory Land Acquisition. Lawbook Company, 2010.

Underkuffler, Laura S. “On property: An essay.” The Yale Law Journal 100, no. 1 (1990): 127-148.


Land Administration Act 1997 (LAA).

The Constitution of Australia.


Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] Q.B. 479

Bury v. Pope (1586) Cro. Eliz. 118, 78 E.R. 375

Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177, p 185.


Victoria State Government, ‘Reformed Residential Zones (Online at 21 March 2019). Retrieved from




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